Irish judge joins Warsaw march over ‘threat to independence’ of judiciary

Mr Justice John MacMenamin among EU judges calling for protection of Polish peers

European Judges are not used to being greeted with applause – at least, that is, until Saturday afternoon in Warsaw.

Dressed in black pleated robes they stepped out, two by two, from between the streaky green pillars of the sprawling supreme court complex. Each had robes embellished with different symbols and coloured accessories. Many carried signs indicating their country of origin: Belgium, the Netherlands, Estonia, Austria, Latvia, Denmark, France, Greece and almost every other European country.

Waiting for them in the cold, before the memorial of the Warsaw Uprising, faces in the crowd lit up at this unprecedented uprising of European judges in solidarity with their Polish colleagues.

"Thank you, thank you," the crowd chanted rhythmically as they applauded the passing black-robed judges. Then the crowd broke out into a full-throated rendition of the Polish national anthem: "Poland has not perished, so long as we live..."


Saturday’s march was the latest twist in a battle for control of Poland’s courts that began in 2015, when the national conservative Law and Justice (PiS) party took office and began a far-reaching overhaul of what they said was an encrusted, crony-filled judicial system.

Critics – in opposition, in international organisations and in the Polish judiciary – say the radical changes are an ill-disguised attempt to intimidate judges and politicise the courts.

Changes to court appointments and the make-up of the appointment bodies was an attempt, critics say, to undermine judicial independence. A new body to discipline judges has, these critics add, created fear in the judicial system that undermines court independence.

An Irish visitor

Amid a long-running battle between Warsaw and the European Commission, and expressions of concerns from the Court of Justice of the European Union (CJEU), judges from across the continent made the unprecedented decision to gather in Warsaw on Saturday in support of their Polish colleagues.

Among the the black-clad European judges was a grey-haired man wearing a padded green down jacket and an Ireland soccer scarf.

"I feel naked without my robes," said Mr Justice John MacMenamin of the Supreme Court of Ireland, "but it is a matter of respect and sovereignty not to wear them. I only hold office in our own country."

Minutes earlier, at a closed-door gathering in the supreme court, Mr Justice MacMenamin presented the Polish supreme court with an open letter of support from the Association of Judges of Ireland (AJI).

This is the first time that the AJI has taken part in a protest, either in Ireland or abroad. Support for their Polish colleagues was “entirely consistent”, the AJI letter said, with the association’s aims and objectives.

The Irish visitor also read out a second letter of support from Chief Justice Frank Clarke, acknowledging that judges were obliged not to get involved in politics.

But they were also obliged, he added, to act to protect the rule of law and the independent judiciary which supports it.

Amid European Court concerns that Polish court reforms fail to respect an independent judiciary, the Chief Justice wrote that “the independence of all of the Judiciaries of the Union is a matter of legitimate interest and concern to each of us”.

Speaking to The Irish Times, Mr Justice MacMenamin said there was a duty on all judges in EU member states to defend an independent judiciary, as this was fundamental to the rule of law which, in turn, guarantees the legal integrity of the EU.

“There is a duty on us, if there is a threat to the independence of any one judicial system, that we try or best to support the judicial system and the individual judges within it,” he said.

He said the AJI had “thought deeply” before deciding to participate in the Warsaw march. He dismissed as a “misapprehension” a concern that attending the march meant the Irish judiciary had crossed a line into the political sphere.

“The line was crossed by people whose actions and legislation affected judicial independence,” he said. “Protection of the rule of law is a legitimate business and legitimate duty of judges.”

At the closed-door court gathering before the march, visiting judges from Norway to Belgium passed on messages of solidarity to their Polish colleagues.

A Dutch judge said he was still surprised to be attending a march, “but these events are exceptional”.

“We are all in this together,” echoed a judge from Norway.

Justice Roland Kempfle, of Munich regional court and member of the German Judges' Association, said: "We think the independence of judges in Poland is in grave danger."

Mr Yavuz Aidin, a former judge from Turkey now living in exile, told the gathering: "Please fight for your democracy and the rule and law because we know how it is to live in a country where rule of law was destroyed."

Rule of law

The visiting judges were greeted at the pre-march gathering by Prof Malgorzata Gersdorf, first president of the Polish supreme court. She has fought against the government court reforms, and defied its attempts to forcibly retire her and other critical colleagues.

“You cannot imagine the impression you’ve made being here today,” she told the visitors, battling a flu and fighting back tears.

Afterwards, she told The Irish Times she understood concerns about judges crossing a political line by marching in Warsaw.

“I was taught my entire life that judges should speak through their rulings but this is an extraordinary situation,” she said. “The executive in Poland is taking all the power from judges and is destroying the rule of law. But judges are sworn to uphold the rule of law, they have a duty to defend it.”

Outside, the march got underway after 3pm amid a sea of Polish and European flags and home-made signs, reading: “Respect” and “Today: judges, tomorrow: you.”

Marching among Poles and international visitors was a large cohort of robed Polish judges, prosecutors and advocates.

As they marched, four years of frustration came pouring out. Few wished to go on the record: too great is the fear and frustration after a four-year hate campaign against them by the Polish government and loyal media outlets that portrays judges as a cosseted, privileged “caste”.

“It’s very good for our morale for other countries’ judges to be here,” said a judge from a Polish regional court, who declined to give her name. “People need to remember that if one part of the state weakens another, the whole structure is undermined.”

One of her colleagues spoke of death threats after a ruling critical of the government, a second said a new culture of fear prevailed in courts that had “gagged” judges and threatens independent rulings.

Many of the marching Polish jurists present said they were pessimistic about the influence the march would have on the ruling PiS party.

"I'm not expecting the government to suddenly say, 'oh, we're wrong', but we all need to be here," said Jakub Batrosiak, a Warsaw solicitor.

Senior members of government were silent on Saturday about a march that Warsaw City Hall said attracted about 30,000 people.

The largely silent march paused for a few minutes before the president palace, where Krakow district court judge Waldemar Zurek urged the current president, PiS loyalist Andrzej Duda, to rise above party politics and support an independent judiciary.

“This is not about judges but protecting citizens and their rights,” said Mr Zurek .

Crowds lined the entire 5km route, cheering and clapping the judges. As the march continued up the Nowy Swiat boulevard, shop workers came out onto the street to join onlookers applauding, nodding and bowing their thanks to the passing international visitors.

Clutching a copy of the Polish constitution and a hand-written sign, saying "Thank you for protecting our rights" was Karin Piechocka, a 68 year-old Warsaw woman.

She felt it was important that international judges marched alongside their Polish colleagues.

“There should be no distinction between Polish and other European judges, ultimately they’re all bound by the same law and treaties,” she said. “This government is leading us out of the EU, our credibility has already slipped.”

Mr Justice MacMennamin said he was heartened by the show of solidarity for Polish judiciary - though he continued to share his EU colleagues’ concerns about the potential knock-on effects of the Polish court row. Without mutual trust in each others’ judicial systems, he said, the EU would cease to function.

“EU law works as a carpet woven together, it’s what makes the EU function on a day-to-day basis,” he said. “In Poland we are concerned that this is fraying.”

Or, as one judge murmured to another in Warsaw as the march got underway: “In terms of system risk, this is as big as the eurocrisis.”

Derek Scally

Derek Scally

Derek Scally is an Irish Times journalist based in Berlin